2314404 (Refugee)

Case [2023] AATA 4705

2314404 (Refugee) [2023] AATA 4705 (31 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314404

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:David James

DATE:31 October 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 11:26am

CATCHWORDS
REFUGEE – protection visa – Vanuatu – threats due to land dispute – threats, bodily harm from opposition party – no state protection – unable to relocate – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 424A, 425(3), 499,
Migration Regulations 1994 (Cth), Schedule 2

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Prasad v MIEA (1985) 6 FCR 155
SZRQA v MIBP [2013] FCA 962

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant, who claims to be a citizen of the Republic of Vanuatu (Vanuatu), applied for the visa on 7 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 14 September 2023. The applicant did not provide a copy of the delegate’s decision with their application for review.

  4. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.

  5. The applicant was not represented in…

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AGLC
2314404 (Refugee) [2023] AATA 4705
Case
[2023] AATA 4705
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicant, who is from Vanuatu, claimed to have fled his country due to threats and bodily harm arising from a land dispute. He asserted that he had sought assistance from relatives, church leaders, and the police, and had attempted to relocate within Vanuatu, but feared he would still be found by the opposing party. The applicant also contended that the police would not provide ongoing protection and that he lacked the financial means to resolve the dispute through compensation as required by Melanesian law.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and if there was a real chance of such persecution upon return to Vanuatu. Alternatively, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Vanuatu, the applicant faced a real risk of suffering significant harm as defined in section 36(2A) of the Act.

The Tribunal considered documentary evidence submitted by the applicant, including his visa application and passport details. The delegate had previously found that the applicant could access effective state protection in Vanuatu and therefore did not meet the criteria for a refugee or face a real risk of significant harm. The Tribunal invited the applicant to provide comments on the delegate's decision and to attend a review hearing. However, the applicant failed to respond to the invitation for comments by the specified deadline and did not attend the hearing. Consequently, the Tribunal exercised its discretion to make a decision on the review based on the material before it, noting that the applicant had lost his entitlement to appear and present evidence. The Tribunal affirmed the delegate's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents considered by the Tribunal:·The applicant’s protection visa application, submitted on 7 August 2023 and the annexed copy of the applicant’s bio data page of the applicant’s Vanuatu passport;·The applicant’s application for review, submitted 14 September 2023; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his visa application, outlined his claims for protection (in summary) as being that:·He left his country because of threats due to a land dispute;·He has been harmed by threats and bodily harm from the opposing party due to him cursing them;·He has sought help from relatives, church leaders and police and he has moved or tried to move to another part of the country to seek safety;·He moved out of the country through seasonal work so that he would not experience threats all the time, and that is why he moved to Austrlia so he can wait for this situation to cool down a bit;·He fears further threats, harm and/or mistreated if he returns to Vanuatu from the opposing party, as in accordance with Melanesian law, he should have settled this dispute through compensation, but he does not have the money to do so;·The police will not protect him everyday as they have other things to do; and·Although he can still relocate to some other province within Vanuatu, they will find him.Department interview The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 24 May 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail himself of effective state protection on any return to Vanuatu should he need to do so. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Vanuatu, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.Invitation to attend hearing

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 24 May 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail himself of effective state protection on any return to Vanuatu should he need to do so. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Vanuatu, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.Invitation to attend hearing On 13 October 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 31 October 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Invitation to comment on or respond to information On 9 October 2023, the Tribunal wrote to the applicant pursuant to s 424A of the Act, inviting the applicant to respond and/or comment on the delegate’s decision of 6 September 2023. The invitation was sent to the last address provided in connection with the review, and advised that if the response and/or comments were not provided in writing by 23 October 2023, the Tribunal may make a decision on the review without taking any further steps to obtain the applicant’s comments and/or response to the delegate’s decision, and that the review applicant would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.Cancellation of hearing of 31 October 2023 The review applicant did not respond and/or comment on the information within the prescribed period (by 23 October 2023) and no extension was requested by/or granted to, the applicant. In these circumstances, the Tribunal, noting that s 424A(1)(a) and (b) of the Act were satisfied, has exercised its discretion to make a decision on the review without taking any further action. The Tribunal in this regard, noting that the section uses the word ‘may’ notes that in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, the court found that the combined effect of this section with s 425(3) of the Act, is that an applicant loses his or her right to appear before the Tribunal.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents considered by the Tribunal:·The applicant’s protection visa application, submitted on 7 August 2023 and the annexed copy of the applicant’s bio data page of the applicant’s Vanuatu passport;·The applicant’s application for review, submitted 14 September 2023; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his visa application, outlined his claims for protection (in summary) as being that:·He left his country because of threats due to a land dispute;·He has been harmed by threats and bodily harm from the opposing party due to him cursing them;·He has sought help from relatives, church leaders and police and he has moved or tried to move to another part of the country to seek safety;·He moved out of the country through seasonal work so that he would not experience threats all the time, and that is why he moved to Austrlia so he can wait for this situation to cool down a bit;·He fears further threats, harm and/or mistreated if he returns to Vanuatu from the opposing party, as in accordance with Melanesian law, he should have settled this dispute through compensation, but he does not have the money to do so;·The police will not protect him everyday as they have other things to do; and·Although he can still relocate to some other province within Vanuatu, they will find him.Department interview